HKSAR v. Tsang Hing Wah

DCCC 1087/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1087 OF 2014

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REASONS FOR SENTENCE

The defendant faces 1 charge of "Burglary", 1 charge of "Attempted Burglary" and 1 charge of "Assault occasioning to actual bodily harm" (respectively Charges 1 to 3). He pleaded guilty to all 3 charges.

Summary of Facts

Charge 1

2.Madam YU (PW1) resided at the address stated in Charge 1 ("Flat 1"), which is a unit on the Ground Floor.  On 25 October 2014, PW1 left Flat 1 around 1:30 pm.

3.About 8:50 pm, PW1 returned to Flat 1 together with her husband.  She discovered that the window of the dining room having been prized open; the massage room and the dining room ransacked.  A $100 banknote and a $50 banknote were missing from a drawer in the massage room.  The cost of repairing the dining room window was $2,000.

Charges 2 and 3

4.Mr. HO (PW2) and Madam YEUNG (PW3) resided at the address stated in Charge 2 ("Flat 2"), which is also a Ground Floor unit.  Both Flats 1 and 2 are situated at the same residential estate in Yuen Long.  On 25 October 2014, PWs 2 and 3 left Flat 2 around 2:00 pm.

5.About 7:30 pm, PWs 2 and 3 returned to Flat 2.  When they entered the garden of Flat 2, they saw the defendant and an unknown male ("WP") standing at the door between the living room and garden.  Upon seeing PWs 2 and 3, the defendant and WP walked towards PW2.  PW2 intercepted the defendant, but WP fled towards the main gate.

6.PW2 tried to subdue the struggling defendant.  The defendant then picked up a brick from the ground and used it to hit PW2's head once.  PW2's neighbour (Mr. LEE) soon arrived and assisted in subduing the defendant.  Meanwhile, PW3 called the Police.  Subsequent medical examination revealed that PW2 sustained minor abrasion without laceration over scalp, left forearm and knee.

7.Police officers soon arrived at Flat 2 and arrested the defendant for burglary.  Under caution, the defendant admitted that he intended to enter Flat 2 to steal, but was caught before he was able to get in.  He also admitted that he hit PW2 with a brick because PW2 refused to let him go.

8.Upon search, the defendant was found in possession of 3 screwdrivers, a pair of pliers, a pair of labour gloves, a $100 banknote, a $50 banknote, 2 mobile phones and 1 iron file.

9.Records of Immigration Department showed that the defendant entered Hong Kong from Lo Wu at 4:59 pm on 25 October 2014.

10.In his video-recorded interviews, the defendant admitted that he and WP reside in the mainland.  They planned to commit burglary about 1 month ago.  He decided to steal because he was unemployed.  The defendant then described in details how he committed each burglary.  Regarding Charge 3, the defendant claimed that he picked up a brick in order to scare PW2; however, he could not hold the brick tightly so it fell onto PW2's head.  The defendant also admitted that since the $150 from Flat 1 were not enough, they decided to burgle Flat 2.

Mitigation & Sentence

11.The defendant is 50. He is a Hong Kong resident but resides alone in the mainland. He is divorced and has a 17-year-old son whom he supports. The defendant has 6 conviction records which include 9 burglary-related offences and 3 "Going equipped for stealing" offences. His last conviction is dated October 2011; he was sentenced to 2 years and 2 months for "Burglary". He was released in January 2013.

12.In mitigation, defence lawyer Mr. MUI submitted that both Charges 1 and 2 can be considered as 1 single transaction. In Charge 1, the $150 cash was recovered from the defendant. The only loss suffered by PW1 was the damaged window. In Charge 2, the couple did not suffer any loss. Charge 3 took place in a state of confusion. The defendant only wanted to get away; he did not intend to harm anyone. According to PW2's own witness statement, after the defendant hit his head with the brick, PW2 picked up the brick and used it to hit the defendant's head once.

13.Regarding the defendant's numerous burglary-related convictions, Mr. MUI submitted that there is a pattern. The defendant has managed to remain trouble-free for 2 extended periods, namely from 1992 to 2000; and from 2000 to 2008. Mr. MUI submitted that the defendant did make an effort to reform himself; however, he foolishly resorted to illegal means each time when he became financially desperate.

14.As admitted by the defendant, he came to Hong Kong to burgle. On the date of the offences, he arrived at Lo Wu at 5:00 pm. By 7:30 pm, he was about to commit the 2^nd burglary. He also admitted that the $150 from Flat 1 were not enough for him and WP. They therefore went to Flat 2. He brought along with him screwdrivers, pliers and gloves. He was no doubt a well-equipped burglar.

15.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs. Being a released prisoner, the defendant must have known how to seek help.

16.For Charges 1 and 2, the normal starting point for domestic burglary is 3 years' imprisonment. Based on the fact that the defendant was acting in concert with another person; he committed 2 burglaries in the same evening and him being a repeated offender[1], I adopt a starting point of 3.5 years' imprisonment for each charge[2]. A one-third discount is given for the guilty plea, reducing the sentence to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 28 months' imprisonment.

17.Regarding Charge 3, in an attempt to escape from lawful apprehension, the defendant picked up a brick and used it to hit PW2's head, which is a potentially lethal attack. It is most fortunate that PW2 sustained only minor injuries. I adopt a starting point of 6 months' imprisonment[3]. A one-third discount is given for the guilty plea, reducing the sentence to 4 months. I sentence the defendant to 4 months' imprisonment for Charge 3.

18.Bearing in mind the totality principle, I consider a global starting point of 4.5 years to be appropriate for all 3 charges. With the guilty pleas, the overall sentence becomes 3 years. Hence, I make the following order :-

(i) 4 months in Charge 2 to run consecutive to Charge 1; and

(ii) Charge 3 to run consecutive to Charges 1 and 2[4];

thereby arriving at a total prison term of 3 years.